In this case involving injury to a maintenance worker in a bucket truck, who was replacing a traffic signal over an open traffic lane while a coworker acted as a groundsman “lookout,” the district court erred in holding that plaintiff maintenance worker had assumed the risk of the bucket being struck by defendant truck driver; the 4th Circuit also vacates summary judgment to defendants on the basis of plaintiff’s contributory negligence.
The district court granted summary judgment to appellees on the ground that plaintiff assumed a risk that the bucket would be hit by a vehicle passing beneath it and because plaintiff was contributorily negligent.
Plaintiff argues the assumption of the risk doctrine does not apply to him because he was a worker engaged in work-related tasks in the roadway. Although appellees are correct that plaintiff did not challenge the applicability of the assumption-of-risk defense below – which would normally lead us to conclude that the argument was waived on appeal – it is the fundamental province of this court to decide cases correctly, even if that means considering arguments raised for the first time on appeal. Here, permitting appellees to avail themselves of the assumption-of-risk defense when Maryland law carves out an exception for persons such as workers in the street in the course of the normal pursuit of their duties would be contrary to the rule of law. We need not assess the merits of appellees’ assumption of the risk defense insofar as plaintiff’s status as a “worker in the street” precludes appellees from relying on the defense that plaintiff assumed the risk that the bucket would be struck by a vehicle passing beneath it.
We conclude that a material factual dispute for the jury exists as to what precautions and actions a reasonable person in plaintiff’s position would have taken.
Appellees claim plaintiff is chargeable with foreseeing that a tractor-trailer may enter the lane of travel where he had positioned the bucket and with guarding against that event. More specifically, appellees assert that plaintiff was contributorily negligent because he failed to block off the lane of traffic where defendant truck driver traveled and turned his back to oncoming traffic during a time that he knew that the bucket was in an unsafe position.
Here, the principal reason upon which the district court based its grant of summary judgment to appellees was plaintiff and his coworker’s failure to take additional precautions. The district court also stated that the coworker’s role as “lookout” did not relieve plaintiff from the duty of caring for his own safety. The question to be resolved is not whether plaintiff could have done more to protect himself, but rather an ordinarily prudent person under the same or similar circumstances would have turned his back to continue working, as plaintiff did.
A party is charged with notice of what common experience tells may, in all likelihood, occur, and to anticipate and guard against what usually happens. Plaintiff testified that he and his coworker had worked together “pretty much everyday” and “for years,” and there is nothing in the record to indicate coworkers previously failed to warn plaintiff (or any repairman) to adjust the height of the bucket or that collisions with tractor-trailers usually happen when a worker is in a bucket and has an assistant on the ground keeping watch for approaching, high-clearance vehicles. Plaintiff was thus entitled to rely on the coworker to provide fair warning to him. Summary judgment on that basis that plaintiff was contributorily negligent was therefore inappropriate.
We vacate the district court ruling that plaintiff assumed the risk the bucket would be struck by a vehicle because plaintiff’s status as a worker in the street precludes availability of the assumption-of-risk defense to appellees. We also vacate the ruling that plaintiff was contributorily negligent and remand this case for trial.
Meyers v. Lamer (Floyd) No. 13-1438, Feb. 25, 2014, USDC at Baltimore, Md. (Gallagher) Paul D. Bekman for appellant; Brian S. Goodman for appellees. VLW 014-2-040, 22 pp.